USA > Massachusetts > Commonwealth history of Massachusetts, colony, province and state, volume 5 > Part 58
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The committee consulted the leaders on both sides freely, and with the assistance of Evans, their technical adviser, presented a simplified measure (November 21) which met the approval of the Convention. Several days were devoted to voting on numerous verbal amendments and substitutions which, with the exception of two minor matters, were uni- formly rejected. Finally, November 27, the measure was passed by the Convention to be engrossed by a recorded vote of 163 yeas, 125 nays. November 28 it was voted viva voce to submit the matter to the people, and the Convention adjourned to 1918.
IMPORTANT PROPOSALS REJECTED IN 1917
The conservative tendency of the Convention was shown by the character of some of the more advanced measures which it rejected, after careful consideration and full debate. Its rejection of proposals to amend the Declaration of Rights, and limitations on the powers of the court and judiciary have already been referred to. It also rejected proposals to allow jury verdicts in civil cases by less than unanimous juries, and to limit the power of less than a unanimous court to de- clare statutes unconstitutional. Resolutions providing for a public defender, the abolition of capital punishment, the right to challenge judge and jury, and other changes in judicial procedure were disposed of without serious controversy. Most labor matters were put over to the session of the following year.
SECOND SESSION OF THE CONVENTION (1918)
Pursuant to vote, the Convention assembled Wednesday, June 12, 1918. The president briefly congratulated the mem- bers on the good feeling that bound them together. Four members of the Convention had died; ten of the younger
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members had enlisted and were serving in the Army or Navy; 306 active members of the Convention remained. Less popular interest was shown in the second session of the Con- vention. Many delegates had sought membership through their interest in the I. & R. and Anti-Aid Amendments; those matters being settled, they attended only on special occasions.
An interim recess committee of distinguished members had reported that no new constitutional questions had been re- vealed by the war. The rules of the Convention and the Committee of the Whole were amended (by a close vote) so as to curtail the unlimited right to debate and to interrupt speakers, both of which privileges had been abused in the previous session.
A batch of proposals to establish a local I. & R. for cities and towns, for constitutional amendment by direct reference to the people, and other adjuncts of the I. & R. contest, were summarily set aside. Proposals for the election of judges and changes in their tenure of office, which was left-over business from the previous session, were debated at length; but all were rejected by decisive majorities. A proposal to allow the legislature instead of the courts to determine what laws fell within the police power was dismissed after a brilliant debate between Brooks Adams, for, and Pillsbury, against.
The distinguishing characteristic of the second session of the Convention was its conservatism. Though eighteen amendments were adopted, only five of them affected the existing personal or property rights of the individual.
NATURAL RESOURCES AMENDMENT (1918)
Four amendments extended the right of the State to affect private property.
(1) An amendment affirming its interest in the conserva- tion, development and utilization of the agricultural, mineral, forest, water and other resources of the Commonwealth and authorizing the General Court to provide for taking them by right of eminent domain, was adopted on June 13, 1918, by a vote of 136 to 86. The principle involved was whether the State should assume the exploitation of its physical resources,
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which heretofore had been left wholly to individual enter- prise. This was in the same line as the Public Trading Amendment, which the people had adopted by a large majority.
(2) An amendment which affirmed that the preservation of ancient landmarks and property of historical or antiquarian interest is a public use, and authorized the Commonwealth and cities and towns to take them according to law and upon the payment of just compensation was in the line of the Public Trading and Public Resource Amendments; but went farther and allowed the State to take private property to satisfy the sentimental pleasure of the people. It was advo- cated by Clapp and other conservatives, and was adopted without a record vote.
PUBLIC INTEREST IN REAL ESTATE (1918)
In the same direction were the (3) Billboard and (4) Zon- ing Amendments, which did not purport to take the property of the individual, but only to regulate its use under the police power. They therefore provided no compensation to the owner for his loss or damage by their application to his premises.
(3) The Committee on Public Welfare (Governor Brack- ett, chairman) in 1917 reported unfavorably on twenty-five proposals to permit legislation in regulation of advertising in public ways or in sight of them. Parker, some years before, when attorney-general, had advised the legislature that it had this power; but the court held that the right of the public, under the police power, to interfere with the use of private property, was limited "to the protection of the public health, safety and morals, and to a limited extent, to the general wel- fare." This amendment extended the right to restrict the use of private land for esthetic reasons only.
Loring thought that such a regulation was a taking of property for which compensation should be paid; but Choate, admitting that it was a close question, thought that it was a matter of regulating a nuisance. On the point of desirability Adams, of Quincy, Radical, argued that the proposition was only another instance of the conflict of private interests with
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public rights, Gerry Brown, Labor, said it was sheer com- mercialism to oppose the measure. There was general agree- ment with these views, and the proposal was adopted without a record vote, August 13th; and it was ratified by the people by a vote of 193,925 to 84,127.
The question, whether the amendment is invalid under the provisions of the Federal Constitution prohibiting the taking of property without due process of law, was discussed in de- bate, is now being litigated, and at the time of writing has not yet been finally decided.
ZONING AMENDMENT (1918)
(4) After the "Bill Board Amendment" there was not much hesitation in extending the existing constitutional power of the General Court to legislate "for the good and welfare of the Commonwealth" so that "welfare" should include the regulation of smells, sights, sounds, and the zoning of buildings.
Zoning had been provided for by the legislature without constitutional provision in New York and Illinois; but in Massachusetts the General Court refused to pass such a law on account of the adverse dicta of the courts. The proposal was passed to be engrossed without record vote, August 13; and was ratified by the people by a vote of 161,214 to 83,095.
COMPULSORY VOTING AMENDMENT (1918)
The personal liberty of the citizen was restricted in a new way by the amendment which allowed the General Court to compel him to vote. The failure to vote by a large propor- tion of those entitled to vote was notorious. The importance to the State of a general exercise of the suffrage and its right to enforce it, just as it can enforce military service, was recog- nized. After a stormy passage in which the amendment was twice rejected and the rejection reconsidered, it was finally adopted by a vote of 148 to 96, largely through the effort of McAnarney, of Quincy. When submitted to the people, it was ratified by them 134,138 to 128,403; but in the decade since the Convention, the General Court passed no such law as was contemplated. No other amendments changing exist-
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ing constitutional principles were adopted; while several im- portant proposals of that kind were rejected, as will be no- ticed later.
MISCELLANEOUS PROPOSALS ADOPTED (1918)
Among minor amendments, the Fifty-seventh make wom- en eligible for the office of notary public; the Fifty-eighth provides for the retirement and pensioning of judges; the Fifty-Ninth provides that corporate charters shall be subject to revocation.
Two amendments regulating the financial policy of the State were adopted. One of them forbids the loaning of the Commonwealth's credit to individuals or privately owned cor- porations, but authorizes it to borrow money to repel invasions, suppress insurrection, or aid the United States. The other provides for a budget system.
The Committee on the Executive (Quincy, chairman) re- ported eight proposals for amending the organization of the executive department and powers of the governor. The first of these provided that this department should include all func- tions and officers not included in the legislative and judicial departments, and that the governor should be the only elective officer, all the others being appointed by him. The measure was usually referred to as the "Short Ballot," and had the support of the leaders of the Convention; but a large ma- jority of the delegates clung to the principle of local self- government and the democratic principle of elective officers, and the measure was rejected by 59 yeas to 115 nays.
A similar fate met the proposal that in the law department the attorney-general only should be elected, and the district attorneys should be appointed by him, although ably advo- cated by Pillsbury (himself a distinguished ex-attorney-gen- eral), by Bartlett, of Newburyport, and by Adams, of Quincy, a persistent advocate of strong government.
However, five amendments were adopted, regulating the executive and strengthening the power of the governor. The most important of them required the 206 commissions estab- lished by the legislature and exercising executive functions to be consolidated into not more than 20 departments under the
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control of the governor. Two amendments regulated the militia and made the governor commander-in-chief.
The budget amendment requires the governor to sub- mit a budget to the legislature and allows him to veto par- ticular terms in appropriation bills. Another amendment allows him to return a bill to the legislature for further con- sideration, before taking final action on it. Another amendment provides for succession in his office.
BIENNIAL ELECTIONS AMENDMENT (1918)
The proposals for biennial elections and sessions of the General Court excited more general interest, both inside and outside of the Convention, than any other measures except the I. & R. and Anti-Aid Amendments. Massachusetts was the only one of the forty-eight States which elected its officers and legislature annually; although in twenty-two States of- ficers elected for longer terms might be recalled. A proposal for such an amendment was submitted by the legislature to the people in 1896, and was rejected by them. Nevertheless, the platform of all three parties contained resolutions favor- ing biennial elections. It was claimed on the floor that Bird, Progressive leader, had forced the resolution on the Republi- cans. Churchill made the opening and principal speech in favor of the amendment, and was followed by animated- not to say acrimonious-debate. Driscoll, of Boston, reported that Union Labor was opposed to it.
The objectors contended that frequent appeals to the elec- torate were the fundamental principle of democracy and pre- vented the representatives of the people from assuming too much power, otherwise they might forget their responsibility. to their constituents and come under the influence of "the Interests." The proponents were equally confident that the people got tired of frequent voting and neglected the duty; they felt that there was less continuity of purpose where those elected to office were continually changing, and less honest regard for duty where reelection was an always impending peril.
The objectors asserted that less frequent elections favored "the Interests," who were on the job all the time, while the
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people acted only when there was an election; to which the proponents retorted that "the Interests" controlled the elec- tions. It was argued, also, that biennial elections would save the Commonwealth half a million dollars a year; which, it was pointed out, amounted to only about twenty cents per capita.
An amendment for the recall of officers was swept aside. An amendment, and an independent proposal for biennial sessions of the General Court were both emphatically rejected. The amendment for biennial elections only was submitted to the people on call of the yeas and nays by a vote of 132 to 104, and was adopted in the subsequent election by 142,868 to 108,588.
REGULATION OF THE GENERAL COURT (1918)
It had become a practice of the legislature to appoint numerous recess committees,' each member of which usually received one thousand dollars for services, often requiring but little time, and in the estimation of the public of little value. ' The practice had assumed the proportions of a public scandal. Therefore, what afterwards became the Sixty-Fifth Amendment was adopted by the Convention, forbidding the appointment of members to offices created during their terms, except as to committees to examine a general revision of the statutes, when submitted to the General Court.
In Massachusetts a bill cannot be "pigeon-holed," inasmuch as committees are required to report on every bill referred to them. Much of the time at the beginning of sessions of the legislature is therefore given to committee hearings. To; en- able the committees to give their uninterrupted attention to these hearings, a resolution was adopted (which became the Fifty-Second Amendment), permitting the General Court to adjourn its general session within sixty days from the beginning of its session, for not more than thirty days.
PROPOSALS ON LABOR AND LABOR DISPUTES (1918)
All measures affecting labor and labor disputes were re- jected by the Convention. A proposal that the injunction or interference of the courts in labor disputes should be pro-
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LABOR AND WAGE PROPOSALS
hibited was reported unfavorably by a majority of the Com- mittees on Labor and Judicial Proceedings sitting jointly ( four members dissenting). Nine members of the committee filed an additional report, suggesting that the Convention consider some means of settling labor disputes, such as com- pulsory arbitration, which was a subject not otherwise before them. Later, Bodfish, of Barnstable, moved the amendment ; but it was defeated after two days' debate. On July 19, 1918, the resolution to regulate the injunction in labor disputes was rejected (196 to 97), the figure "97" marking the largest num- ber of votes cast in favor of any strictly labor measure.
PROPOSALS ON HOURS OF LABOR AND MINIMUM WAGE (1918)
The Committee on Labor (Lowell, chairman) reported an amendment empowering the General Court to regulate and restrict the hours of labor; which, on the motion of Walker, of Brookline, was amended by adding to it "and to establish a minimum wage." The most effective supporter of the ma- jority was Dutch, of Winchester, a member of a State com- mission then existing, which had power to establish a mini- mum wage for women and minors in some industries, but lacked effective means of enforcing its decrees.
A motion of Bodfish, the blind member from Barnstable, to substitute compulsory arbitration was lost; and the measure was passed to be engrossed, July 31, by 100 to 38. Two weeks later, there was a complete reversal of position when Driscoll, of Boston, reported that union labor was opposed to the proposition. Although Lowell made an eloquent ap- peal to allow the public to rule, rather than leave capital and labor to fight it out between them, the Convention (68 to 120) refused to submit the amendment to the people.
That the public had very much on its mind matters of so- cial welfare was shown by the filing of 24 proposals concern- ing it. The one resulting proposal came from the Com- mittee on Social Welfare, which reported, practically unani- mously, an article of amendment empowering the General Court to establish systems of social insurance, including pen- sions for old age or physical disability, health and unemploy-
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ment insurance, and compulsory workmen's compensation. The only dissenter, Bodfish, concurred in the general principle, but moved a shorter and broader measure. Although the labor men concurred in this view, the whole proposition was rejected 28 to 100.
TAXATION (1918)
The taxation system of the Commonwealth had been much under discussion for several years, and two exceptions to the general provision that taxes must be equal and proportioned had recently been inserted in the Constitution. The Forty- First Amendment empowered the General Court to prescribe special methods of taxation on wild and forest lands. The Forty-Fourth Amendment empowered the General Court to tax income, and to exempt the property from which it was derived.
The general purpose of the 17 proposals before the Conven- tion was to allow the classification of property for the pur- poses of taxation, and to eliminate wholly the word "propor- tional" from the Constitution. The Committee on Taxation (Chairman Cox, of Boston, and Charles Francis Adams, of Concord, dissenting) reported a measure which would have accomplished this purpose. Somewhat amended, the proposal was favored by Walker, Creamer and other Progressives, and by Trefry, of Marblehead, who was then tax commissioner, and by the single-taxers, who wished all taxes assessed on land, by the manufacturers, who wished to exempt machinery from taxation, and in general by any group who wished to shift their burden to some others. The usual accusation of tax dodging was made by Lomasney and others against those desiring a change.
The proposal went to its third reading (June 27) by a roll- call vote, 129 to 87; but finally the Convention decided to adhere to the view of the fathers expressed in an opinion by Chief Justice Bigelow, that the "rule of proportion was based on the obvious and just principle that the benefit which each person derives from government has direct relation to the amount of property which he possesses and enjoys under its sanction and protection." The proposal was rejected, July 31 (107 to 121).
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PROPOSALS ON ADMINISTRATIVE LEGISLATION (1918)
The principal reason for advocating biennial sessions of the General Court was the large number of statutes enacted yearly, most of which were special legislation; such as, ex- tending the life of a corporation to permit it to wind up its affairs, or allowing a town to sell part of its cemetery. As Luce pointed out, any one of these acts was necessary to right a wrong, and the remedy was, not to curtail sittings of the legislature, but to allow it to delegate its powers to pass private acts to some administrative board, whose decrees should have the force of law until revoked. This was no more nor less than the power to make executive ordinances, which is vested in executives in many countries,
The Committee on State Administration and on the Execu- tive, sitting jointly, unanimously reported such a measure ; but although advocated by most of the best minds of the Conven- tion, the proposition was too much of an innovation and de- parture from the cardinal provision of the existing Constitu- tion that the executive should never exercise the powers of the legislative department. It was rejected, 55 to 94.
THE CONVENTION WAS REPRESENTATIVE (1917-1918)
That the Convention fairly represented the people is shown by their adoption of all the amendments submitted to them. In the eleven years since the Convention ad- journed, the people have not adopted any amendment which the Convention rejected. Nearly six sevenths of those voting for governor in 1917 also voted either for or against the three amendments submitted in November of that year. In 1918 the vote on the I. & R., though the largest cast on any amendment, was only a little over three fourths of the vote cast for governor. The difference is probably due to the fact that in 1917 only three propositions were on the ballot (one relating to a religious controversy) as compared with nineteen amendments submitted in 1918 .:
PREELECTION AGITATION (1917-1918)
The only real contest in 1917 was on the ratification of the Anti-aid Amendment. In 1918 the "Union to Defeat all
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Amendments," in the newspapers and circulars, recommended voters to vote "no" on all amendments: because so many voters were absent in France, because the convention was inferior in character to the average legislature, and because some of the measures submitted were objectionable. These circulars had no perceptible effect on the election. Men in the billboard business made a little campaign of their own by posters, mostly in, opposition to all the amendments.
RATIFICATION OF THE I. & R. (Nov., 1917)
The great contest in the ratification elections was carried on by I. & R. committees, organized some for and some against, which had the support either in person or money of many of the most prominent citizens of the State. Churchill, of Amherst, was chairman of the committee in opposition, and Judge Morton was a member.
Thirty individuals, mostly bankers or business men, con- tributed $1,000 or $500 each. The total fund raised was $88,418.55, the largest ever reported in a State campaign. The number of persons employed by the committee, including members of the Convention and of the legislature, was very large. They argued against ratification in public meetings, joint debates and private interviews. They issued an able and well-edited pamphlet, aiming to prove that the I. & R. proposal was not needed in Massachusetts, or was objec- tionable.
The committee in favor of the I. & R. was headed by Walker, and was made up of sixty prominent men, many of whom already had been active in promoting the measure, either inside or outside of the Convention. The total fund raised by them was $3,003.40, contributed mostly in moder- ate-sized amounts. Their chief expenses seem to have been for rent, printing, and postage.
The I. & R. Amendment was ratified by the close vote of 170,646 (especially strong in Boston) to 162,103. Although the vote was the largest on any amendment submitted that year, the majority of 8,543 was the smallest given for any amendment.
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REARRANGEMENT
REARRANGEMENT OF THE CONSTITUTION (1918-1919)
Although the Constitution had been specifically amended forty-four times before the calling of the Convention, it had never received connected revision. Its text, one third of which was obsolete or repealed, had become so confused that it was difficult to ascertain its legal bearing.
Having adopted such specific amendments as it desired, the Convention on August 20, 1918, just before the adjourn- ment of the second session, provided for a special committee of nineteen to "rearrange" the Constitution and its amend- ments, including those which should be adopted in Novem- ber. Report was to be made to a special session to be held in the summer of 1919 for the sole purpose of acting on such report. As it afterwards turned out, the word "re- arrange," used in the order instead of "revise," was unfor- tunate; but Washburn, of Middleboro, who proposed the order, was following a late precedent in Maine, and was anxious to retain the construction of the various provisions, words and phrases of the Constitution that had been hereto- fore given them.
The work of preparing the draft of the rearranged Con- stitution was entrusted to a subcommittee consisting of Judge Morton, chairman, Hart, clerk, and Pillsbury, Parker and Loring. The committee began its work immediately after the adoption of the nineteen amendments in November. Judge Morton undertook the rearrangement of the Constitu- tion, and Hart, assisted by Laurence Evans, technical adviser of the Convention, took charge of the clerical work, printing, and making the numerous cross references and editing the various documents. He also submitted a redraft of the whole Constitution and all the amendments, which was not adopted by the Committee, as being a "rewritten" and not a "re- arranged" Constitution and therefore not in compliance with the order of the Convention.
The work was carefully passed upon by the members of the subcommittee separately and together in several confer- ences. May, 1919, they reported the Morton draft to the General Committee, who, after changing the enacting clause and making some minor changes, submitted it with their
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report to the Convention. The enacting clause reported by the subcommittee followed the ordinary form used when a revision of the statutes is made, repealed the existing Con- stitution and reenacted it in its revised form.
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